48 posts from August 2013

08/31/2013

This is precisely the kind of situation for which the Framers of our Constitution designed its division of authority between President and Congress. Sending our missiles against Syria is an act of war. If it is to be done, Congress, not the president, should approve.

We are, of course, a long way from Philadelphia 1787, and much of what the Framers thought and intended is now obscure. But there's not much question they gave the power to commence war to Congress. The idea of a single chief executive arose within the first week of the Convention, and John Rutledge of South Carolina declared that "he was for vesting the Executive power in a single person, tho' he was not for giving him the power of war and peace."

This theme carried through. The Framers gave Congress even the minor powers that go with making war -- prescribing military discipline, issuing letters of "marque and reprisal," etc. The Committee of Detail gave the entire power to "make war" to Congress, not the President; Madison moved the change to "declare," saying he did so to make clear that the president would have power "to repel sudden attacks." Before the vote to change that language, Elbridge Gerry spoke for many when he said he "never expected to hear in a republic a motion to empower the Executive alone to declare war."

That is the power that, signs suggest, Barack Obama will exercise sometime this weekend or next week.

(Thanks to Bryan Wildenthal at Thomas Jefferson Law School for the pointer).

Of course I agree. But there's a key textual point to highlight here. Professor Epps (and others who take a similar view) equate the constitutional term "Declar[ing] War" with the power to commence war. That assumption is central to Epps' entire argument. Obviously President Obama is not going to issuing a formal eighteenth-century-style document entitled "Declaration of War." The President's action against Syria, whatever it may be, will be constitutionally problematic only if one thinks "initiating hostilities" is equivalent to "declaring war" in the constitutional sense.

Regular readers know that I do think "initiating hostilities" is equivalent to "declaring war" in the constitutional sense. But why would anyone think that? It is not the obvious and exclusive meaning of the phrase. People, both in the eighteenth century and in modern times, have described hostilities as begun without a declaration of war (or as we sometimes put it today, "undeclared" wars). Used this way, there is plainly a difference between declaring war and initiating hostilities. Why is this not the constitutional meaning?

There is an answer, which I have tried to explain at perhaps too much length elsewhere. Eighteenth century language, constitutional structure and the descriptions and assumptions of the founding generation show (a) that at the time "declar[ing] war" could mean initiating hostilities and (b) that this was the meaning expressed in the Constitution's text. My point here, though, is that this is not an obvious meaning, accessible just from the face of the document. It is one that can be uncovered and demonstrated only by reference to eighteenth century context and meaning.

Thus the declare war issue illustrates that textualism is not simply about reading a few words in the document and expecting answers to become immediately apparent. It is also an investigation of what the words meant in the context in which they were written. It is only through a study of that context that we can say with any confidence what the power to "Declare War" means.

RELATED: John Yoo argues the other side here and here. As to his second post -- which purports to summarize the academic argument against presidential war-initiation power -- I will say only that it simply does not engage or fairly represent the academic argument as it has been developed in the last 15 years. Notably, (1) Professor Yoo asserts that the argument against the President "relies on legislative intent" when instead it relies in large part on the meaning of "Declare War"; and (2) Professor Yoo claims that there are only three items of evidence suggesting a lack of presidential power, whereas an enormous volume of evidence shows that every major framer who spoke on the issue assumed that only Congress had the power to initiate hostilties.

UPDATE (11:30 AM PDT): CNN is reporting that President Obama will ask for congressional approval of military action in Syria.

In the immediate aftermath of the Supreme Court’s landmark 2008 ruling in Medellín v. Texas, critics attacked the Court’s holding as deeply inconsistent with the original understanding of treaty interpretation. Medellín, wrote one scholar, “cannot be reconciled with any identifiable version of originalism.”

This Article carefully reexamines the interrelationship between the late-eighteenth century law of nations, the framing and ratification of the federal Constitution, and the practices of the early Supreme Court. In uniting these threads, it reveals a link — patent and remarkable — between the late eighteenth century law of nations, the Constitution’s decision to vest treaty interpretation in the judiciary, and the methods of treaty interpretation employed by the Supreme Court in the early republic.

Textual treaty interpretation — Textualism in all but name — was thought to be a requirement of the law of nations at the time of the Constitution’s adoption. The Constitution’s Framers — who knew the law of nations’ interpretive rules — invested treaty interpretation in the judiciary for precisely this reason, designing the federal judiciary to allow independent and expert judges to interpret treaties textually even if that meant that such interpretations went against the interests of the United States. The Supreme Court, through the end of the Marshall era, did precisely as the Framers intended, holding to a muscular Textualism, citing often to interpretive rules embedded in the law of nations as it did so.

Ultimately, this historical reexamination uncovers a fascinating story about the interplay between interpretive expectations and constitutional and institutional design. The law of nation’s requirement that treaties be interpreted textually allowed the young United States the opportunity to bind its own hands and thereby obtain the credibility necessary to deal with European powers on equal footing. Vesting treaty interpretation in the judiciary meant the United States’ treaty commitments would be honored as a matter of positive law. But this strategy depended in no small measure on an ability to signal to other nations precisely how those treaties would be interpreted. The law of nations’ requirement that treaty interpretation be rule-bound and textual made the United States’ decision to invest treaty interpretation in the judiciary more than an illusory promise. It ensured other nations their commitments would be honored according to international maxims of interpretation well-settled and widely-known.

This is a very important article that, because of its international orientation, might be overlooked by constitutional scholars. If it is right in its central premise (and I think it is), it suggests that a similar "rule-bound and textual" approach to interpreting the Constitution is consistent with the outlook of the era.

I've posted a new draft on SSRN defending a neglected view of the legitimacy of the Fourteenth Amendment: the idea that only loyal states represented in Congress should be included in the Article V denominator. Here's my abstract:

The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises two problems for the Fourteenth Amendment’s legitimacy: Congress (a) proposed the Amendment while excluding Southern representatives in 1866, and (b) required Southern states to ratify as a condition for readmission in 1867. Scholars like Bruce Ackerman, John Harrison, Akhil Amar, and most recently Thomas Colby have proposed a wide variety of conflicting ways to handle these problems. Ackerman explains the Amendment’s legitimacy on the basis of President Johnson’s 1868 capitulation to a non-Article-V process, confirmed by the Supreme Court in 1873. Harrison relies instead on the unreviewable finality of congressional membership decisions and pressured state ratifications, Amar on congressional power to republicanize Southern states with black suffrage, and Colby on the normative desirability of an intergenerationally-authored Fourteenth Amendment including cases like Brown and Roe.

A less-strained and historically-much-better-supported approach grounds Fourteenth Amendment legitimacy on the South’s forfeiture of Article I and Article V rights upon secession. The South had no right to participate in federal lawmaking process, either as legislators or as part of the Article V denominator, until the Union’s military victory was sufficiently secure in the view of Congress. Given a loyal Article V denominator, the Fourteenth Amendment became law on February 12, 1867, with Pennsylvania’s 20th ratification out of 26 congressionally-represented states, as opposed to July 1868, when 28 of the full 37 states had ratified, including 8 ratifications squeezed out of the South. More interpretively important than the change in the time of adoption is the change in the constitutional author: we should understand the meaning expressed by the text as uttered only by the loyal North, not as if it were uttered in partnership with former Confederates.

Ackerman, Harrison, Colby, and especially Amar have all noted the possibility of a loyal-denominator solution to Fourteenth Amendment legitimacy and the existence of substantial support for the theory. This article, however, canvasses its historical support during Reconstruction, and gathers their argumentation, far more thoroughly than has been done before. A great many Republicans espoused the theory, beginning from the very beginning of the war and continuing through 1868 and beyond, and their theories were not limited to either Charles Sumner’s state-suicide theory, Thaddeus Stevens’s theory of successful secession and reconquest, or the view that Southern states were not republican in form. The key for most advocates of the view was instead reliable loyalty in the face of secession. While some important Republicans, like President Lincoln in speaking of the Thirteenth Amendment, were agnostic on the issue, virtually no Republicans gave full-throated criticisms of the loyal denominator. A loyal denominator was also adopted by many early scholars to consider the issue. This Article explains the loyal-denominator view and focuses on its prevalence during and after the Civil War and Reconstruction. A sequel will defend loyal denominatorism under the meaning expressed by the relevant constitutional language at the original Founding and investigate the implications of a Northern-authored Fourteenth Amendment both for its interpretation and for democratic theory.

I've hinted at this view a few times on the blog, and it was mentioned a few times during the discussion of Tom Colby's paper at the originalism conference last February--see here, here, and here for the videos. I'll have some posts here explaining a few key chunks of the view in the next few weeks. Please send me any comments!

08/29/2013

Over the years, three different approaches have been developed for grounding originalism.

1. The first approach involves a normative argument for originalism. Under this approach, one argues that originalism is the normatively best way to interpret the Constitution. There are various versions of this approach. Justice Scalia argues that only originalism leads to clear rules to guide judges and the public. Judge Bork contended that originalism is the only approach compatible with democracy. Keith Whittington maintains that originalism is justified by popular sovereignty.

2. The second approach is an interpretive argument for originalism. Under this approach, one argues that the actual meaning of the document that is the Constitution is the original meaning. To determine the actual meaning, one must give it the meaning it would have had at the time of its enactment. This approach is adopted by both original public meaning advocates, such as Gary Lawson, and original intent defenders, such as Larry Alexander.

My own approach (with John McGinnis) makes both kinds of arguments. We argue originalism is the normatively best way of interpreting a good constitution and there is a strong reason to believe that a constitution enacted pursuant to strict supermajority rules will be a good one. We also argue the actual meaning is best determined through original methods originalism, which interprets the meaning of the Constitution based on the interpretive rules that would have been deemed applicable to the Constitution at the time of its enactment.

3. But there is a third approach to originalism: this involves what the law is today. Under this approach, one would argue that originalism is what the law is today. That is, the most accurate reading of the law today requires originalism.

This approach, I think, is a harder one than the others. After all, one might argue that, of course, originalism is not the law today. The Supreme Court regularly decides cases that do not conform to originalism and it often does so employing interpretive methodologies that are not originalist.

Yet, the matter is a more complicated than that. While the Supreme Court decides cases from a nonoriginalist perspective, the justices have almost never said that they are contravening the original meaning of the Constitution, except where precedent requires (or allows) them to do so.

In the past, I have not really explored this third approach very much for a variety of reasons, including my skepticism about theories of law. But I have become more interested in it lately. And so I plan in the next couple of weeks to do a couple of posts on the issue.

On the subject of impending military strikes against Syria, I have little to add to my prior post on the similar situation in Libya in 2011. I argued then (writing at Opinio Juris):

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton. As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval. Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries. Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war.” (References are found in my article “Textualism and War Powers,” 69 U. Chicago L. Rev. 1543 (2002), in part I.A).

Does the Libya intervention amount to a “war” in constitutional terms? Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.” International law writers of the time expressed similarly expansive definitions. Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course.

The fact that our use of force is limited to air strikes should not matter. Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution). The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801. So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks. (In 1801, Hamilton argued that authorization wasn’t needed because Tripoli, not the U.S., began the war; but he agreed that congressional authorization would otherwise be necessary even in the context of an attack on a single Tripoli warship.)

Thus the founding generation thought the Constitution reserved war-initiation power to Congress. How could this be, though, if Congress has only the power to “declare War”, which we may think refers to making a (now-outmoded) formal announcement? Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic TwoTreatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way. Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.” Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks. (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.

Perhaps, though, the President also has power to declare war (after all, the Constitution expressly says only that Congress has it, not that the President doesn’t, and it could be part of the President’s power as commander-in-chief). Returning to Hamilton, a key passage in his Federalist32 argued that often constitutional power could be held concurrently by different entities. But, he continued, an exclusive grant of power would arise where concurrent power would be “totally contradictory and repugnant” – that is, when one branch’s exercise of a power would wholly undermine an express grant to another branch. Hamilton didn’t give the example of declaring war here, but it fits his model: war, once launched, cannot be undone without consequences. If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power. James Wilson told the Pennsylvania ratifying convention: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.” In Libya, President Obama has “declared” a war – a limited one, to be sure, but still a war by 18th century definitions – without congressional approval. That contravenes both the Constitution’s text and the founding era’s consensus understanding.

The short of it is that, in my view -- and I have a high level of confidence here -- the original meaning of the Constitution requires congressional approval for any action that creates a state of war between the U.S. and Syria. Whether very limited strikes designed to destroy chemical weapons stockpiles but not to overthrow the Syrian government or otherwise influence the course of the civil war would qualify is a closer question. But again the Johnson definition of "war" is very broad. And surely we would consider another nation's attacks on our weapons stockpiles to be an act of war, even if purportedly for a humanitarian purpose.

With Syria, unlike Libya, there is the additional issue of whether strikes would violate the U.N. Charter. I think the conventional understanding of the Charter's text is that they would, and that proponents would have to find some non-textual and non-originalist source of law (perhaps post-enactment custom, or a "living Charter"). On this point, though, it is worth noting a textual point that I think has not been fully explored:

The relevant part of the Charter, Article 2(4), is generally said to bar the use of military force against another nation (subject to a self-defense exception in Article 51, not applicable to the Syria situation). But the actual 2(4) language is more complicated:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Thus the ban is not on the "use of force" against another nation but on the "use of force against territorial integrity or political independence" of another nation. Can there be a use of force against a nation that is not a use of force against its territorial integrity or political independence? Textualist principles would say yes: (a) otherwise the "territorial integrity or political independence" language is surplusage; and (b) the next clause ("or in any other manner ...") suggests that there are uses of force not covered by the "territorial integrity or political independence" language which nonetheless may be (but may not be) inconsistent with the purposes of the United Nations.

If so, again perhaps a very limited strike on chemical weapons facilities would not be prohibited. It would not be a use of force against Syria's territorial integrity, in the sense of attempting to forcing the surrender of territory (which is probably what the Charter's drafters, acting in the shadow of the territorial conquests of the 1930s and 40s, had in mind). Whether it is a use of force against Syria's "political independence" depends on what that rather uncertain term means. Arguably, an attack that does not attempt to influence the course of the civil war, apart from eliminating chemical weapons, does not fall within the ban; Syria would remain politically independent in the sense of remaining a fully sovereign nation, unlike for example a situation in which a new government is forced upon it by outside arms. And arguably such an attack would not be inconsistent with the purposes of United Nations, if it were only to stop the use of chemical weapons and not to affect the outcome of the civil war.

I am not aware of any comprehensive investigation of the original meaning of Article 2(4)'s text, supporting this view, however.

As I understand Ginsburg’s assertion in context, she is deploying a neutered meaning of the term judicial activism, under which any vote to strike down legislation, whether or not correct, is an exercise of judicial activism. ...

The label judicial activism and its opposite, judicial restraint, draw on separation-of-powers concerns about the proper role of the courts in our constitutional system. Their proper uses therefore depend on a sound understanding of what is, and what is not, correct constitutional interpretation (a matter on which, of course, there is plenty of room for debate). To use the term judicial activism in a manner that fails to distinguish between correct and incorrect invalidations of statutes is to abuse the term.

As I've expressed before, I have doubts about a definition of "judicial activism" that ends up meaning "An approach I don't agree with". So I have more sympathy for Justice Ginsburg's definition. What I find most interesting, though, is her assumption that judicial activism (by her definition) is bad (or at least that her listeners think that judicial activism by her definition is bad). Contrast this argument by Suzanna Sherry (with responses here [in the Green Bag], here [by Orin Kerr] and here [by Ilya Somin].

There are also the questions (a) whether Justice Ginsburg is right about the activism of the Roberts Court, and (b) whether Justice Ginsburg really thinks activism (as she defines it) is bad. Jonathan Adler comments critically on both points:

If activism is "measured in terms of readiness to overturn legislation," the current Court is not one of the "most activist courts in history," at least not compared to others of recent memory. ... [T]the Roberts Court is the least activist Court of the post-war period by this measure, invalidating federal statutes far less often than did the Warren, Burger, or Rehnquist Courts. ...

Justice Ginsburg’s apparent concern at her colleagues’ propensity to invalidate[ ] federal legislation is curious for another reason: She votes to overturn federal legislation as much as any justice on the Court other than Justice Kennedy. She’s not only joined numerous opinions in which the Roberts Court has struck down federal laws (e.g. Windsor, AID v. AOSI, Alvarez, Stevens) , she’s dissented in cases — such as Holder v. Humanitarian Law Project and Salazar v. Buono — in which legislative action was upheld. ... As a consequence, had Justice Ginsburg’s view prevailed in every case heard in the past four terms, just as many federal law would have been struck down. So much for her allegation of "activism."

Looking at the actual behavior of the Roberts Court, it becomes clear that Justice Ginsburg’s real complaint is with the substance of specific opinions, not that the Court is too "activist" (as she herself defines the term). Indeed, in many cases, Justice Ginsburg believes the Court is not "activist" enough, and too willing to uphold federal action.

Keith E. Whittington (Princeton University - Department of Politics) has posted Originalism: A Critical Introduction (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court and the Reagan administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This essay assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and points to the primary points of continuing separation between originalists and their critics.

08/27/2013

At Balkinization, Sandy Levinson has this amusing post on the statutory aspects of the matter (with interesting twists and turns in the updates and comments). And Garrett Epps has an interesting piece in The Atlantic on the English practice of naturalizing potential monarchs, which the framers wanted to avoid: Would the Founders Have Cared Where Ted Cruz Was Born?

I think Ted Cruz is a natural born citizen. But it's a mystery to me why any one thinks it's an easy question. Consider:

(1) The argument is that anyone who is born a citizen is a natural born citizen. But that's a questionable claim on its face, because it ignores the word "natural". A purely textual reading would demand that there must be some "born citizens" who are not "natural" born citizens, or the word "natural" would be superfluous (violating the "Surplusage Canon," see Scalia & Garner, Reading Law, pp. 174-75).

(2) The argument is that Senator Cruz is a "natural born citizen" because a statute made him a citizen at birth. The ordinary meaning of "natural" in this context is exactly to the contrary, however. "Natural" means the opposite of "created by statute": for example, natural law versus statutory law; natural rights versus positive rights; natural person [an individual] versus legal person [a corporation or other entity]. So this view also violates the "Ordinary-Meaning canon" (Scalia & Garner, pp. 69-70).

(3) As to history, it seems fairly clear that the original meaning of "natural born subject" (that is, what it first meant, though not necessarily what it meant in the eighteenth century) in English law was a person born within sovereign territory. And a person in Senator Cruz's position (born abroad to a citizen mother and a non-citizen father) would not have been born an English subject even under eighteenth-century English statutory law, which gave natural-born-subject status to people born abroad whose fathers were English subjects. (See Henry Henriques, The Law of Aliens and Naturalization, pp. 33-44). Further, continental scholars such as Vattel, who thought a child's citizenship followed the citizenship of the parents rather than the place of birth, also thought it was the fathers' citizenship that mattered (Vattel, Law of Nations, book I, sec. 219 (referring to the "law of nature" as establishing this)). Thus there is no supporting historical practice prior to 1789.

(4) Finally, the Senator's argument depends on a reading of the Constitution that allows Congress to make "natural born citizen" mean anything it wants; if Congress wants to make anyone born in Cuba a U.S. citizen to show its solidarity with the Cuban people, then indeed everyone born in Cuba would be a natural born citizen of the United States for presidential eligibility purposes. That seems in tension with the idea of a constitutional eligibility requirement.

As I outlined earlier, I think there is a good argument that, nonetheless, Senator Cruz meets the constitutional definition of natural born citizen. But it is surely not an obvious one. It depends on the claim that "natural born" had by the late-eighteenth-century become a term of art meaning (contrary to what would seem to be its ordinary meaning) 'entitled to citizenship by whatever statute was in effect at time of the person's birth.'

For what its worth, on further reflection I think the 1790 Naturalization Act strongly supports this view, as the enacting Congress seemed to think it was free to define "natural born citizen" to mean whatever it wanted at a level of great detail:

And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

As I described earlier, this approach is consistent with the eighteenth-century English parliament's view that it could define natural born subject as it pleased (and indeed could tinker with the definition for policy reasons).

In sum, I think -- contrary to the canons! -- "natural" really is surplusage used contrary to its ordinary meaning. As Scalia and Garner themselves say, no canon is absolute.